jud-independence in the arab world

8/3/2019 Jud-Independence in the Arab World

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JU D I CI AL I N D E P E N D E N CE I NTHE ARAB WORLD

A STUDY PRESENT ED TO TH E

PROGRAM OF ARAB GOVERNAN CE OF T H E

UNITED NATIONS DEVELOPMENT PROGRAM

BY

DR. ADEL OMAR SHERIF

PRESIDE N T, COMMISSION ERS BODY

SUP REME CO NSTITUTIO N AL CO URT O F EG YP T

AN D

DR. N ATH AN J. BROWN

PROFESSOR OF POLITICAL SCIEN CE AND IN TERN ATION AL AFFAIRS

TH E G EO RGE WASH IN G TO N UN IVERSITY


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Judicial independence and the rule of law have moved to the center of global attention. Whilesome of the interest in the matter emanates from the Western world, no region or culture has amonopoly on the concept. Indeed, the principle of judicial independence has deep roots in Islamicculture. All Arab states have proclaimed their fealty to the principle of judicial independence in theirconstitutions or basic laws.

T H E N AT U R E O F JU D I C I AL I N D E P E N D E N C E

THE IMPORTANCE OF JUDICIAL INDE PEND ENCE

Judicial independence is critical to three areas of governance. In all these areas, however, theapplication of the principles of judicial independence raises difficult issues.

First, protection of human rights depends partly on a robust, fair, and independent judiciarywilling to hold all political and social actors accountable to legal and constitutional protections. Thisrole involves two paradoxes. First, while judicial independence might be considered a human right,the subject of the right (the people) is different from those who exercise the right (the judiciary). Inother words, judges are independent not for their own sake but for the sake of the society that they

serve. Second, judges are both part of the apparatus of the state and part of a mechanism that holdsstate actors accountable. This requires them simultaneously to uphold the public order and correctthe actions of public authorities. It would impossible to fulfill these simultaneous missions withoutgenuine independence.

Second, judicial independence facilitates political stability and fairness. In the short term,however, (especially in emergency situations), many governments have been fearful that full exerciseof judicial independence and legal safeguards can expose a political system to security risks. Thisfeeling has generally been high among Arab governments, but it is hardly a uniquely Arab pattern. Inthe United States after September 11, prominent leaders debated the degree to which normal judicialprocedures could be followed and some (both in the United States and in other countries) chargedthat the American government was quick to forget some of its commitment to the rule of law under

the threat of terrorism.1 The purpose of this paper is to examine the requirements of judicialindependence in the Arab world rather than the United States, but it must be noted that the sort ofsecurity issues that have often inhibited Arab governments from full observance of judicialindependence can arise in other countries as well, even those that pride themselves on a history ofjudicial independence.

Finally, judicial independence is critical for the development of healthy and sound economies. Inincreasingly complex economies and societies, judicial independence can help ensure the rule of lawnecessary to avoid inefficiency, injustice, and arbitrary rule. For this reason, internationaldevelopment institutions (such as the World Bank) have evinced a growing interest in judicialdevelopment. Yet this renewed interest in judicial institutions, while quite welcome, often comesfrom organizations that have historically devoted more attention to other areas of economicdevelopment and sometimes find themselves required to develop expertise in an area that might havebeen deemed too political in the past.

1 For instance, one very prominent American legal scholarstated that even if national security requires our government to ignore traditional rights of accusedcriminals in pursuing and trying suspected terrorists, it must nevertheless recognize that it acts unfairly in doing so, and it must therefore violate those rights only when the

violation is demonstrably essential. He argued that American actions did not meet even this generous standard. See Ronald Dworkin, The Trouble with the Tribunals,

N ew York R eview of Book s, 25 April 2002, p. 10.


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INTERNATIONAL STANDARDS

While judicial independence is often proclaimed as a principle, the diversity of legal and politicalorders in the world has made it difficult to define in practice. Some countries insulate judges frompolitical pressures by having them selected by non-political bodies; other countries (most notably theUnited States) attempt to guard independence by involving multiple political forces in their selection

(federal judges are nominated by the president with the advice and consent of the upper house ofCongress). In some systems there is greater stress on the independence of the individual judge; inother countries here is greater stress on the independence of the judiciary as a whole.

Judiciaries in the Arab world have been formed by the interaction of the Islamic and civil lawtraditions. In some countries (such as Sudan and Jordan), there has been some common-lawinfluence as well. The Arab world also includes both presidential systems and monarchies. Toproclaim a uniform definition of judicial independence in such a diverse environment is difficult.And developing a global standardone appropriate for all political and legal systems in the worldmight be seen as far too complex to attempt.

Yet despite this diversity, at the international level there are various international instruments thatdeal with judicial independence. Domestically, constitutions of many countries insist that judges

should handle their cases in an independent manner without any interference exercised in theirbusiness, either by the other branches of the government or by the individuals. And on theinternational level, documents, conventions and treaties focusing on the protection of human rightsoften provide for judicial independence. International tribunals, such as the European Court ofHuman Rights and its Commission, as well as the concerned courts in democratic countries join insupporting the independence of the judiciary either explicitly or implicitly.

As to national constitutions, in some of them, as that of the United States of America (1789)2, wefind that the term judicial independence is not explicitly embodied in the Constitution. Thisindependence, however, is unarguable as the Constitution itself implicitly provides for suchindependence throughout its structures that separates the government powers and requires them toact within the rule of law. Other constitutions such as the Constitution of France (1958), explicitly

provides for the guarantee of judicial independence. This Constitution states in Article 64 that [t]hePresident of the Republic shall be the guarantor of the independence of the judicial authority...3

Judicial independence is not simply a domestic matter; it has increasingly become aninternational standard. For example, the Universal Declaration of Human Rights (1948) provides inArticle 10 that [e]veryone is entitled in full equality to a fair and public hearing by an independentand impartial tribunal, in the determination of his rights and obligations and of any criminal chargeagainst him.4 And the European Convention on Human rights (1950) provides in its Article 6 that:

In determination of his civil rights and obligations or of any criminal charge against him,everyone is entitled to a fair and public hearing within a reasonable time by an independent andimpartial tribunal established by law...5

2 Ratified on September 17, 1787, and became effective for the ratifying states on June 21, 1788, when New Hampshire ratified it.

3 A law was passed on June 3, 1958 to lay down terms of reference within which the drafters of the new Constitution were to work. The fourth principle of these

terms indicated that the judicial power must remain independent in order to insure the respect of basic liberties....

4 Adopted and proclaimed by the General Assembly of the United Nations, Resolution No. 217 A (III) of December 10, 1948.

5 Ratified in Rome on November 4, 1950, and entered into force on September 3, 1953.


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In addition, the Seventh United Nations Congress on the Prevention of Crime and theTreatment of Offenders, held at Milan from 26 August to 6 September 1985, adopted a number ofrich principles that guarantee judicial independence known as the basic principles on theindependence of the judiciary. These principles were then endorsed by General Assembly resolutions40/ 32 of 29 November 1985 and 40/ 146 of 13 December 1985. (See Appendix A.) By approving theGeneral Principles on the Independence of the Judiciary, the General Assembly did not attempt to

devise a single system for all countries. Instead, it proclaimed twenty general principles that shouldapply regardless of the prevailing legal and political order. The document recognizes that therecontinues to be a gap between theoretical principles and actual practice and expressed the wish thatthe twenty principles would serve to assist Member States in their task of securing and promotingthe independence of the judiciary should be taken into account and respected by Governmentswithin the framework of their national legislation and practice and be brought to the attention ofjudges, lawyers, members of the executive and the legislature and the public in general.

The principles endorsed by the UN General Assembly fall into six categories. The first concernsgeneral issues of judicial independence: independence must be guaranteed, but this is not enough.The judiciary must also be given jurisdiction; it must receive the resources necessary to perform itstasks; its rulings must be implemented; and tribunals eschewing established procedures must not be

used as a device to avoid the judiciary. The second category concerns freedom of expression andassociation. This is a difficult area, because international practice varies greatly. In some countries,in which partisan bodies (such as parliaments) are involved in the selection of judges, it is notunknown for judicial candidates to have known party affiliations.6 In other countries, it would beconsidered highly problematic for a judge to be associated with any party. In some countries, judgments are issued in the name of the court with dissenting judges barred from publiclymentioning their dissent, much less justifying it.7 In other countries, dissenting opinions are notmerely published but studied by jurists and have some precedential value. The UN principlestherefore cannot demand uniformity, but they do insist that judges have the same rights as othercitizens (subject to the professional requirement that they do not diminish their impartiality) and thatthey also have the right to organize and join professional organizations.

The third group of principles endorsed by the United Nations General Assembly involves the

qualifications, selection, and training of judges. Again the principles do not require specific practices,but they bar discrimination and improper criteria in judicial appointments. The fourth group ofprinciples covers the conditions and terms of service for judges. Here the principles require thatsuch matters be governed by law, that judges serve either until retirement or until a legally-fixed termexpires, and that assignment of cases be based on internal administrative grounds. The fifth group ofprinciples involved professional secrecy and immunity, barring judges from revealing or being forcedto reveal confidential information and requiring that they receive appropriate immunity from civilsuits connected with their professional duties. The sixth and final set of principles involveddiscipline, suspension and removal of judges, requiring appropriate processes and insisting thatjudges may only be disciplined for cause.

6 One of the most prominent and respected chief justices of the United States Supreme Court, Earl Warren, had served as an elected governor of the state of

California and as a vice-presidential candidate, both times with the nomination of the Republican Party; he was named to the Supreme Court by a Republican president and

approved by a Senate with a Republican majority.

7 This is the case in most of the Arab world, though the practice of barring judicial dissent may be questioned. SeeAdel Omar Sherif, TheFreedom of Judicial Expression, the Right to Concur and Dissent: A Comparative Study, in Kevin Boyle andAdel Omar Sherif (editors), H uman R ights and Democracy: The Role of the Supreme Constitutional Court of E gypt,(London: Kluwer Law International, 1996).


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THE ARAB WORLD IN INTERNATIONAL PERSPECTIVE

Thus, judicial independence in todays world is unarguably a foundation for the goodadministration of justice,8 and the concept is increasingly endorsed by judiciaries in different (andvery diverse) parts of the world. It is, in this sense, a well-established legal doctrine that has been inforce for years. It has been authorized all over the world wherever civilized government systems

exist. In its essence, judicial independence is considered to be a fundamental human rightindeed, insome ways, it is a human right that helps protect other human rights. It is therefore widely acceptedthat judicial independence should be constitutionally guaranteed to every person in our contemporaryworld. When this basic guaranty is enhanced, the need for other safeguards in the judicial processdecreases.9

A solid link between judicial independence and democratic system of government does,therefore, exist. Undoubtedly, in all judicial systems including the Arab ones, no judge can performhis/ her duties properly unless he/ she is independent and also immune from being attacked eitherpersonally or professionally. This is simply because any attacks on the judiciary, whether it takes placeby accident or on systematic basis, definitely harms the overall judicial performance, negativelydetract from litigants fundamental rights and consequently affects judicial independence as a basicfoundation for modern, democratic societies. Justice, therefore, cannot exist within any given

democratic system of government in the absence of judicial independence. As a result, the prevailingtendency today in the written language of the constitutions and basic laws of modern states is toprovide for judicial independence explicitly in their texts.

The importance of judicial independence is not new in either the Arab world or the broaderMuslim world. Indeed, the independence of the judiciary is a very well established principle in theIslamic Sharia. The principle has historically been applied differently, because Islamic systems ofgovernment, in their early stages, did not adopt the principle of the separation of powers as it isunderstood currently.10This was because the Prophet Mohammed exercised judicial, legislative andexecutive powers himself, which gave rise to a tradition of these powers all being exercised by theruler of Islam (which, after the Prophets death, was the Caliph). As for judicial power, underProphet Mohammedand after his death, under the ruling Caliphssome of this power was

delegated to local governors (known as al-W ali) and specialized judges (al-Qadi), with these authoritiesbeing required to administer justice in compliance with Islamic law. As the Islamic State expandedinto various countries, the Caliph had to rely on local officials to apply Sharia throughout the State.This, however, did not affect the Caliphs right to review their actions. Therefore, in Islam, the

8The European Court of Human Rights, for instance, views judicial independence as one of the elements that constitute a good administration of justice. See: R. St.Macdonald, F. Matscher and H. Petzold, The E uropean System for the Protection of H uman R ights, MNP, 1993, p. 381.

9 In that sense, Judge Henry Friendly noted that as the independence of the decision maker increases, the need for other procedural safeguards decreases.Martin H. Redish and Lawrence C. Marshall,Adjudicatory Independence and the Values of Procedural Due Process, Y ale L aw Journal, January 1986, FN. 91.

10 The judicial function, from the earliest forms of the organized state until the middle ages, was centralized in the hands of the rulers to the extent that there was no

clear distinction between judicial function and the other functions of the state. Furthermore, in addition to the ruler's powers, there were times, throughout different ages,

in which the religious powers of Judaism, Christianity and Islam had a great impact on governmental systems and the judicial function of each. It used to be a function of

the state to defend religious beliefs in ecclesiastical matters, thus serving, for the most part, the interests of the leaders of the clergy. Nevertheless, the exercise of judicial

powerwhether by the rulers, the religious institutions or the people's representativesdid not reflect the real role played by those who carried out their judicial burdens

in the justice administration process, as the achievement of justice was always subject to and governed by various political and ecclesiastical considerations, and

consequently there were no clear defining lines to distinguish the judicial function. In actuality, such a role is only clearly defined when the judicial function has its own

identity and independence, which did not practically exist until the doctrine of the separation of powers became one of the principal tenets of the present-day democratic

systems of governments.

See: Adel Omar Sherif, An Overview of the Egyptian Judicial System and its History, Y earbook of Islamicand Middle E astern Law, Volume V.


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Caliphor the supreme ruler of Islamis to be the center of power, and judges and other officialsare to derive their respective powers through delegation from him. This, by any means, did not affectjudges ability to be fair, impartial and independent, as they were always keen to perform their powerindependently and within the law.11 It must also be noted that although political power wasconcentrated in the hands of the ruler, the development of an Islamic legal traditionbased onscholarly interpretation of sacred sourcesmaintained a significant degree of autonomy for the legal

field.

THE GROWING COMMITMENT TO JUDICIAL INDEPENDENCE IN THE ARAB WORLD

In recent years, Arab states have endorsed the idea of judicial independence in accordance withinternational standards; they have also proclaimed their acceptance of the principle of separation ofpowers. Most Arab constitutional texts make this acceptance explicit. For instance, the currentconstitution of Egypt, ratified on September 11, 1971, assured judicial independence in severalprovisions. It provides in Article 65 that ... the independence and immunity of the judiciary are twobasic guarantees to safeguard rights and liberties. It also provides in Article 165 that [t]he judiciaryis independent... Moreover, it provides in Article 166 that [j]udges are independent. In theirperformance, they are subject to no authority but that of the law. No authority can interfere in casesor judicial affairs.

In many ways, the Egyptian constitution (both the 1971 document and its 1923 antecedent) andjudicial structure are exemplary, sometimes serving as models for emulation elsewhere in the region.12Whether drawing on the Egyptian experience or not, virtually all Arab constitutions guarantee judicialindependence. For instance, Article 97 of Jordans constitution proclaims that Judges areindependent, and in the exercise of their judicial functions they are subject to no authority other thanthat of the law. Article 163 of Kuwaits constitution states In administering justice, judges are notsubject to any authority. No interference whatsoever is allowed with the conduct of justice. The lawshall guarantee the independence of the judiciary and state the guarantees and provisions relating tojudges and the conditions of their irremovability. Article 82 of the Moroccan constitution is simpleand direct: The judiciary shall be independent from the legislative and executive branches.

Yet despite nearly universal support for the idea of judicial independence, Arab constitutionalsystems vary greatly in how much specificity they give to the concept.13 Yemen and Palestine, forinstance, have some thorough provisions on how to guarantee judicial independence; Sudan and theUnited Arab Emirates spell out the court structure in some detail. Yemen goes so far as to banexceptional courts (Article 148), and Saudi Arabia grounds judicial independence in Sharia principles(Articles 46 to 54).

It should be no surprise that the degree of judicial independence varies from one country toanother, and even in the same country from time to time, in light of many political, economic and

11 I believe that the separation of powers is not inconsistent with Sharià, though others may disagree. We can, therefore, assume that the modern understanding of

the Islamic system of government would, in fact, appreciate this principle.

12 It is worth mentioning here that the comprehensive application of Sharià in Egypt, its neighbors and other countries who witnessed the Islamic spread of the

Seventh Century, occurred during a limited period of time. It was confined to the period between the commencement of this spread until the late Nineteenth Century

when new codes, derived mainly from the European codes, began to be introduced in the Ottoman Empire and its affiliated Arab countries. After that, the application of

Sharià dramatically declined. Today, legislation in most Arab countries, including Egypt, is not generally drawn from Sharià but rather is grounded on those European

codes.

13 For an examination of provisions for judicial independence in the Arab world, see Nathan J. Brown, Arab JudicialStructures, http:/ / www.pogar.org/ publications/ judiciary/ nbrown.


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social considerations prevailing in the concerned country at a certain period of time. Despite thisregional variation, the publicly-proclaimed standards for Arab judicial structures have increasinglygrown to resemble the broader international standards.

In 1983, Arab states negotiated the Arab Convention on Judicial Cooperation in Riyadh, animportant first step in constructing regional standards. But the ratification process proceeded quite

slowly, and the focus was in fact less on developing regional standards than on matters of jurisdictionand enforcements of judgments across borders. But in June 1999, a critical second step was takenwhen the Arab Center for the Independence of the Judiciary and the Legal Profession (ACIJLP), incollaboration with the Geneva-based Center for the Independence of Judges and Lawyers (CIJL)held a conference on judicial matters. The Beirut conference hosted by the Lebanese BarAssociation and under the auspices of the Lebanese Minister of Justice gathered 110 Arab juristsfrom 13 Arab states. The conference produced a declaration (See Appendix B) providing for acomprehensive set of goals and standards for Arab judiciaries.

The Beirut Declaration has seven sections. The first section covers safeguards for the judiciary,urging a series of structural and procedural guarantees of judicial independence. The second sectionturns the focus to the selection of judges, urging that clear legal guidelines be adopted. Third, the

Declaration recommends measures to insure adequate training to ensure that the judiciary is qualifiedfor its tasks. The Declarations fourth section urges structures and procedures for judicial review ofthe constitutionality of legislation. The fifth section contains recommendations for the rights of theaccused and for fair trials. Sixth, the Declaration denounces discrimination in judicial positions onthe basis of gender. The final section urges support for the International Criminal Court.

The Beirut Declaration represents the logical starting point for future regional efforts to ensurethat general commitments to judicial independence are met.

JUDICIAL COMMITMENT TO JUDICIAL INDEPENDENCE

The judiciary in the Arab World, as has been seen, gives a noticeable attention to the principle of judicial independence. The Supreme Constitutional Court of Egypt, for instance, has repeatedly

emphasized the importance of judicial independence as a binding constitutional principle in severalrecent decisions. We will now look into these decisions in order to understand how regionalstandards have been articulated, particularly with regard to perhaps the most important prerequisitefor maintaining judicial independence: separation of power between the executive and the judiciary.

In a landmark decisions concerning the powers of a bankruptcy judge, the SupremeConstitutional Court of Egypt reviewed the principle of judicial independence and explained itsimportance to a democratic society.14 The Court first made clear the distinction between judicialindependence and the impartiality of judges. Judicial independence, the Court stated, refers to freedomfrom interference in judicial affairs by other powers, whereas judicial impartiality pertains to the judges own ability to adjudicate a case without any personal bias against any of the parties. Thesedefinitions are somewhat relevant to the notion of judicial impartiality as construed by ProfessorJ.A.G. Griffith, who explained that,

impartiality means not merely an absence of personal bias or prejudice in the judge, but alsothe exclusion of relevant considerations, such as his political or religious views. Individual

14 Case No. 34 for the 16th Judicial Year, decided on June 15, 1996, published in The Official Gazette No.25,June 27, 1996.


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litigants expect to be heard fairly and fully and to receive justice. Essentially, this view rests on anassumption of judicial neutrality.15

The Court then reconfirmed its view that judicial independence is a fundamental principleembodied in the Constitution of Egypt which requires at least a minimum level of adherence toensure the existence of a democratic society. In so doing, the Court set forth the following guidelines:

! Judicial independence means that judges are free to evaluate the facts of the disputebefore them and to construe the applicable law without any direct or indirectpressure being imposed upon them by others.

! The judiciary must be independent vis--vis both the executive and legislativebranches of government. The executive has to refrain from any attempt to interferewith the rendering of decisions or the enforcement thereof. Legislation must notcontradict or undermine previous judicial rulings.

! Judicial independence means that judges must have the right to defend theirindependence within the constitutionally protected right of assembly.

! Judicial independence requires that judges must be independent of each other andthat seniority and judicial hierarchy must not affect any judges performance.

! Judicial independence requires that all issues of a judicial nature be dealt with by the judiciary alone. For example, the assignment of cases to judges must be a purelyinternal matter, done without intervention from any external source.

! Judicial independence requires that any disciplinary action against judges must bebased solely on clear and convincing evidence of an inability to perform. It alsorequires that judicial tenure be secured, without threat of reduction or restrictionwhile in service; that judges be appointed for long terms; and that judges be selectedon objective criteria within the merit system.

! The judiciary must be consistently allocated sufficient financial resources by the

State, otherwise there will only be the illusion of judicial independence.

Defining judicial independence in an Arab context is an important achievement, demonstratingthe commitment of governments and judiciaries to the concept. But definition is not tantamount toapplication.

OBSTACLES TO JUD ICIAL IND EPEN DEN CE IN TH E ARAB WORLD

ACCOMPLISHMENTS AND POSITIVE ASPECTS

Thus, the independence of the judiciary is not alien to the Arab and Islamic traditions; in fact,there are strong religious, political and cultural norms supporting the concept. The task is not tochange existing norms but to live up to them. A sophisticated and professional judiciary now exists inall Arab countries. All Arab states recognize provision of justice in a neutral manner as part of theirmission to society.

15 J.A.G. Griffith, The Politics of the Judiciary, 4th ed., Fontanta Press, 1991, p. 269.


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Some problems that have arisen in other societies have not arisen in the Arab world. Forinstance, in some societies, judges lack independence because strong social pressures are put onjudges. This can happen in Arab countries (for instance, with honor crimes or security offenses), butit is less likely than in other settings (such as Latin America or even North America). There is astrong sense of professional identity among many judiciaries in the Arab world, though this must befurther strengthened in order to guard against undue external influence and even corruption.16

In this respect, it is important to note that the legal systems of most Arab countries were verymuch influenced by French law for several political and historical reasons. As a result, legal traditionsin these systems are quite different from those of the Anglo-American legal system, andconsequently, most legal principles are construed in different ways in each of the two systems.

In particular, even though the idea of separation of powers is very strong in such systems, theidea of checks and balances is more unique to constitutional systems built on the American model.A checks and balances approach allows the branches to oversee each others work but preventsthem from dominating each other. The focus is far less on building walls of separation among thevarious branches of government and more on allowing them the tools to hold each otheraccountable. In such an approach the various branches do oversee the affairs of the others, but each

has sufficient authority and resources to avoid subordination. The various authorities overlap inmany areas. A checks and balances approach would not work in the Arab world because pluralismis so weak in society. The executive is so strong that following a checks and balances approachwould lead it to domination by the executive.17

Thus, if Arab states wish to live up to their commitments to judicial independence, they mustfocus more on a firmer implementation of a separation of powers approach, allowing the judiciarysufficient corporate autonomy from the other branches of the state. While the verbal commitmentto such a principle is very strong throughout the Arab world, much work must be done to implementit in practice. Even where structures have been created to grant judicial independence, such asjudicial councils, the preconditions for judicial independence have not yet been met.18

MAJOR PROBLEMS IN THE ARAB WORLD

Judicial independence requires safeguards against both external and internal forces. In other words,it requires vigorous application of the separation of powers principle to guard against attempts tousurp judicial power by external authorities (i.e., the other branches of government); in addition, itseeks to protect judges from undue influences coming from within the judiciary itself (i.e., internalforces such as superiors or the judicial administration bodies).

16 For a useful comparative overview of issues of judicial independence, see the report published by the InternationalFoundation for Electoral Systems, Guidance for Promoting Judicial Independence and Impartiality,http:/ / www.ifes.org/ rule_of_law/ judicial_independence.pdf

17 This is examined in more detail in Mechanisms of Accountability in Arab Governance: The Present and Future ofJudiciaries and Parliaments in the Arab World, http:/ / www.pogar.org/ publications/ governance/ nbrown/ account.html.

18For a thorough and balanced examination of the contributions and limitations of judicial councils in a different setting,

see Linn Hammergren, Do Judicial Councils Further Judicial Reform? Lessons from Latin America,http:/ / www.ceip.org/ files/ pdf/ wp28.pdf


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While both elements of judicial independence warrant attention, in most countries includingArab countries in particularthe external element related to separation of powers has beenthe primary cause for greater concern. We will now, therefore, be focusing on the external element.

No country in the Arab world lives up to domestic or international standards for independenceof the judiciary. If we focus on the international standards, the following principles from the UNs

General Principles are the most problematic in the Arab world:

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authorityto decide whether an issue submitted for its decision is within its competence as defined by law.

Here the problem is that Arab judiciaries are sometimes restricted in their jurisdiction, bothby legislative texts and by executive action.

5. E veryone shall have the right to be tried by ordinary courts or tribunals using established legal procedures.Tribunals that do not use the duly established procedures of the legal process shall not be created to displacethe jurisdiction belonging to the ordinary courts or judicial tribunals.

Most Arab states have some provisions for special courts that do not meet internationalstandards for fair procedures. This is partly an outgrowth of the difficult security situation inmany Arab countries.

7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properlyperform its functions.

Most judiciaries in the region complain that they do not receive adequate resources. Just asimportant from the point of view of judicial independence, they do not have full controlover the resources and are dependent on the executive (often the Ministry of Justice) whichbecomes far too mired in internal judicial matters. Even judiciaries that have attained asignificant degree of formal independence often find this achievement undercut by lessvisible aspects of dependence.

9. Judges shall be free to form and join associations of judges or other organizations to represent theirinterests, to promote their professional training and to protect their judicial independence.

In some Arab countries, judges have been able to form appropriate organizations andassociations, but professional training opportunities are still insufficient.

14. The assignment of cases to judges within the court to which they belong is an internal matter of judicial

administration.

Assignment of cases is sometimes a politicized matter, especially in politically sensitive cases.

In short, the other branches of the statethe legislature and the executivehave not yet createdthe conditions in which international standards can be met.19 We will turn our attention first to

19 The jurisprudence of the European Court of Human Rights (e.g. Langborger judgment of 29 June 1989)suggests that in considering whether a given organ is an independent judicial body, regard must be given, interalia, to the manner of appointment of its members, and their terms of office, as guarantees against outsidepressure and as manifestations of independence.

See the above-indicated decision in: R. St.J. Macdonald, F. Matscher & H. Petzold, The European System forthe Protection of H uman R ights, Kluwer Academic Publishers, 1993, p. 397.


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legislatures where the problems are simpler to describe. Following that, we will focus on theexecutive.

JUDICIAL INDEPENDENCE AND THE LEGISLATIVE BRANCH

The Arab world has witnessed frequent attempts by the legislature to limit judicial discretion.

The issue is not unique to the Arab world. Even a country that has prided itself on judicialindependence, the United States, has seen the judiciarys discretion over sentencing greatly reducedby the legislature. Indeed, judges in Egypt, unlike judges in the United States for instance,20enjoymore freedom in this regard. The Penal Procedures Code (Article 17), for example, vests in judges ageneral discretionary power to reduce the level of criminal sanctions fixed by the Legislature so that judges retain discretion in sentencing even where the applicable legislation provides for minimumsanctions.

To be sure, the Egyptian parliament, like the US Congress, has attempted to diminish judicialdiscretion. It has been resisted by the Supreme Constitutional Court, which has made clear that itconsiders any legislative restriction on the discretion of judges to be a threat to judicial independenceand a violation of the separation of powers principle. The Court addressed over the last few years

several attempts by the Legislature to restrict the discretion of judges and found in all instances thatthe Legislature had acted unconstitutionally.21 In one case, the Court examined legislation thatrestricted judicial discretion by preventing judges from issuing injunctions with regard to judicialdecisions which levy fines in particular cases. The Court struck down this legislation as violating theprinciple of independence.22

Sometimes the problem is not that legislatures encroach on the judiciary but that they maintaintoo much distance. In most Arab countries, judiciaries do not communicate their budgetary needsdirectly to the parliament, instead having it routed through the Ministry of Justice. This can have theeffect of rendering the judiciary less an independent power of the state when dealing with thelegislature; instead it seems to be an appendage of the executive.

Occasionally, legislatures will overturn bold decisions by courts by rapidly changing legislation.In some sense, this tactic is fully consistent with the separation of powers principle: it is thelegislature that is responsible for determining the text of the law. But when such a tool is usedexcessively, it risks turning the parliament into an informal overseer of the judiciary, willing tooverturn politically inconvenient decisions.

20 In the United States, for example, mandatory minimum sentences are an ancient tradition, as old as theconcept of criminal punishment. In accordance with this tradition, the discretion of judges in setting criminalsanctions is now restricted by limitations set by Congress.

21 Some of these cases involved statutes which presumed the liability of certain persons in certaincircumstances. The synthesis of the Court concludes that, while the Legislature has the power to define crimesand the appropriate punishment for such crimes, a presumption of liability, in any case, unconstitutionally

infringes upon the power of the courts to determine whether or not a crime has been committed, and thusviolates both the principle of judicial independence as well as that of separation of powers case No. 5 for the15th Judicial Year, decided on May 20, 1995, published in the Official Gazette , A l-Jarida al-Rasmiyya, No. 23 onJune 8, 1995; Case No. 31 for the 16th Judicial Year, decided on May 20, 1995, published in A l-Jarida al-

Rasmiyya No. 23 on June 8, 1995; and Case No. 59 for the 18th Judicial Year, decided on February 1, 1997,published in A l-Jarida al-RasmiyyaNo. 7 (Supplement) on February 13, 1997.

22 Case No. 37 for the 15th Judicial Year, decided on August 3, 1996, published in A l-Garida A l-Rasmia No. 32on August 15, 1996, and Case No. 130 for the 18th Judicial Year, decided on September 1, 1997, published in

A l-Garida A l-RasmiaNo. 37 on September 11, 1997. Also, Case No. 124 for the 18th Judicial Year, decided onNovember 15, 1997, published in A l-Garida A l-Rasmia No. 48 on November 27, 1997.


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JUDICIAL INDEPENDENCE AND THE EXECUTIVE BRANCH

The ability of the judiciary to assert its independence with regard to the executive is even moreproblematic than its relationship with the legislature.

T he Separation between the Judiciary and the E x ecutive The recognition and

effective application of the principle of separation of powers is essential for achieving judicialindependence. This principle, however, is not a self-enforcing one. Nor are the categories of publicpower which are to be separated entirely clear-cut or completely self-contained. There is always thepossibility that one branch of government will seek to exercise powers that, in substantive terms, arenot within the sphere of its competence.23 Indeed, in some countries, where a strong executiveprevails, interference in judicial affairs has not been limited to subtle attempts to usurp the judiciary,but has also included instances where the executive has actually gained control of the judiciary, or hasbeen successful at using it as an instrument to fulfill its political goals.

The best ways to forestall executive domination differ between authoritarian systems andconstitutional democracies. In the Arab world, where authoritarian and constitutionally democraticforms are often blended, the problem of executive domination is especially difficult, and neither thetools used in authoritarian systems nor those used in constitutional democracies have been fully used.

In authoritarian systems dominated by the executive, this application requires the balancing ofthe position of the judiciary within the whole system of government, especially if the power ofjudicial review is also recognized, and precludes the officials from the executive from imposing theirwill on the judiciary. It also allows the judiciary alone to regulate all judicial affairs, from the arrival of judges on the bench until the termination of their service, including judicial training, compensation,duties, privileges, discipline, impeachment, removal, and rules of procedures. Moreover, it allows thejudiciary control of its financial and administrative affairs, including administration, staff and budget.

While judicial independence is difficult to achieve in such an authoritarian setting, it is alsodifficult to achieve in a constitutional democracy. This is because the separation of powers involvesinherent ambiguities which flow from the fact that it is never entirely achievable thing. Rather, it can

be seen as an ever-evolving process requiring constant test cases. The domination of the executive issimply not so clear-cutseparation of powers in practice cannot be absolute but requires somecoordination among state actors. When being applied, the principle requires constant review. Thusexecutive domination often occurs in subtle ways. Regional judicial arrangements appear to be thebest source for identifying potential and actual violations, as in the case of the European Court ofHuman Rights which has passed on several issues relating to the separation of powers as relates toindividual human rights. Transferring this system to other regional contexts (such as the Arab world)would be a worthy but difficult project. That judges and courts must still have a wide space in whichto freely exercise the judicial function without threat of external intervention is not in question. Theproblem is one of application. Who shall have standing and in what forum? To what extent are theviolations really visible from the inside and to what extent can they be chalked up to an acceptableintrusion in favor of a balanced democracy?

Most Arab governments, falling between the extremes of absolute autocracy and constitutionaldemocracy, have not pursued either of these paths effectively. A clear separation between thejudiciary and the executive, in particular, has not been achieved. Egypt, for instance, falls somewherebetween the two extremes where the executive in Egypt, represented in this context by the Minister

23Arthur Taylor von Mehren, James Russell Gordley, The Civil L aw System, 2nd ed., Little, Brown and Co., 1977,p. 215.


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of Justice, continues to exercise considerable authority over the judiciary, especially the civil, criminaland administrative courts. In comparison to the role of the Attorney General in the United States the post most analogous to Egypts Minister of Justice the Minister of Justice has tremendousinvolvement in judicial affairs.24 Other Arab states show a similar inability to separate the Ministry ofJustice from judicial affairs.

In fact, what is worrying here is the relationship between the Minister of Justice and the threeimportant judicial components (civil, criminal, and administrative) in most Arab countries, includingEgypt in particular. This type relationship means that the Minister of Justice has the ability toinfluence profoundly a large segment of the judiciary and inhibit the willingness of the judgesinvolved to render judgments freely and without regard to whether their judgment in a particular casemay be objectionable to the Minister. Such a relationship, unfortunately, can only detract fromjudicial independence.25

E x ecutive Interference in the Judicial A ffairs In many modern democratic systems ofgovernment judges act independently without interference from the legislature or the executive, whoare not involved in the process of the administration of justice. Courts control all judicial affairs,including administrative and financial matters.

While the separation of powers between the judicial branch and the other two branches ofgovernment, particularly the executive, is the most essential aspect of judicial independence in everydemocratic system of government, the existence and role of the Ministry of Justice and itsrelationship to the judiciary, constitute central issues that must be dealt with carefully. Howeverdemocratic the system or professional the personnel, Ministries of Justice inevitably have strong tiesto the judicial branch. The strength or weakness of these ties must be measured in light of thedepartments ability to infiltrate the judiciary. This ability may result in interference with, and at timesdomination of, the judicial function in countries where the executive has de facto control over theother branches of government.

A n E x tensive E x ecutive Involvement in Judicial A ffairs In the majority of Arab countriesfollowing the civil law system, especially in its French version, the executive branch of government isusually very much involved in the judicial affairs through the Minister of Justice, who is the head ofthe Department of Justice and a cabinet member as well. Unlike other legal traditions and systems,the Minister of Justice in Arab systems, even as head of the Department of Justice and as a memberof the executive branch, has strong ties to the judiciary. His involvement in the administration ofjustice is noticeable to the extent that the minister is often regarded by most citizens as the ultimatepower in the judicial branch.

Legislative provisions tend to reinforce this perception by according the Minister of Justice ahigher status than any judge. They do not lack any protection for the judiciary, however, leading to amixed situation. By looking into the Egyptian Constitution, for instance, we find that some judicialindependence from the Minister of Justice is provided for. Other various statutes that regulate the

24 Whether any Minister of Justice has ever abused his authority or acted inappropriately is not the issue here,the fact remains that the level of involvement by the Minister of Justice poses a real threat to the independenceof the judiciary.

25 While there does not appear to be any evidence that any Minister of Justice has ever consciously tried toimpose his own legal or political agenda on the judiciary through these powers, the threat to judicialindependence remains. Thepotential for abuse thepossibility of retribution for unfavorable judgments andthe proximity of the two branches in this relationship is, alone, sufficient to curb judicial independence.


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judiciary do the same.26 For example, the constitutional and legislative provisions regulating theSupreme Constitutional Court do not allow for any interference from the Minister of Justice in theaffairs of that court or for his involvement in the disciplining of its judges. Similarly, the StateCouncil Statute does not allow the Minister of Justice any power over Council members or over theCouncils operations or disciplinary processes. The laws governing other judicial bodies, however,grant the Minister of Justice much more control over them.

The high level of influence accorded the Minister of Justice over the judiciary can be seen in thefollowing:

The budgets for all other judicial bodies are determined by the SupremeCouncil of Judicial Bodies, which is effectively presided over by the Minister ofJustice.

Law No. 46 of 1972, regulating the Ordinary Judicial Body (which iscomprised of the civil and criminal courts), vests in the Minister of Justice thepower to supervise closely the performance of the judges in that body andaccords the Minister of Justice a role in disciplinary actions against these judges,

including the right to initiate a disciplinary case and the responsibility forenforcing removal actions.

Law No. 75 of 1963, concerning the State Cases Agency27 gives the Ministerof Justice the right to call the Supreme Council of this body to a meeting andthe right to control the appointments, promotions, delegations and transfers ofits members; this law also retains in the Minister of Justice the power to regulatethe internal affairs of this body and to establish an inspection department toevaluate the efficiency of its members. Included in this power is the right toinitiate a disciplinary action against a member of the State Cases Agency, as withjudges of the Ordinary Courts.

Law No. 117 of 1958, concerning the Administrative Prosecution Body (thebody which prosecutes public employees for administrative offenses), grants theMinister of Justice the right to review and supervise its operation; as with theState Cases Agency, the Minister of Justice has the power to call for a meetingof the Supreme Council of the Administrative Prosecution Body, to relocate itsmembers, and to create an office charged with inspecting the performance ofthose members and initiating disciplinary actions when warranted.

The Minister of Justice is thus heavily involved in the affairs of the Ordinary Courts, the StateCases Agency, and the Administrative Prosecution Body. In contrast to the detached role of theUnited States Attorney General with regard to judicial affairs, the role of the Egyptian Minister ofJustice in the affairs of Egyptian courts is quite considerable, particularly when it comes to thedisciplining of judges.

26 See, Articles 165, 166, 168, 174, 177 of the Constitution of Egypt. See also, Articles 1, 11, 24 of Law No. 48of 1979 (concerning the Supreme Constitutional Court); Articles 52, 67, 72 of Law No. 46 of 1972 (concerningthe judicial power); Articles 1, 91, 94 of Law No. 47 of 1972 (concerning the State Council); Article 1 of LawNo. 75 of 1963 (concerning the State Cases Agency); and Article 1 of Law No. 117 of 1958 (concerning theAdministrative Prosecutor).

27 The State Cases Agency is the agency that represents the government in civil litigation and is made up of thestate attorneys.


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T he M inisterial Role in the D iscipline of Judges A basic principle in measuring judicialperformance was set forth in a decision rendered by a Canadian court in 1915 (D avis A cetylene Gas Co.v.M arrison); in which the court declared that Judges are servants, not the masters of the people. Aspointed out in the introduction to this study, judicial independence as a human right is unusual inthat those who enjoy the right (judges) are not those who benefit from ita judge is grantedindependence in order to serve society. Judges exercise an enormous amount of authority and with

such authority must come responsibility. Thus, their independence notwithstanding, judges must alsobe accountable in various ways for the authority they wield.28This principle is understood in mostArab countries in that most judges, while enjoying judicial immunity which allows them to actindependently,29 are also subject to rules of judicial responsibility. Unfortunately, the disciplinaryprocess established generally holds judges accountable in a way that affords the Minister of Justiceyet another opportunity to exert his influence over the judiciary.

The constitutional provisions and the laws regulating the discipline of judges provide for varioustreatments that vary from one judicial body to another. Most Arab constitutions appear to grant judicial independency by stating that judges cannot be removed but they do not prevent judicialdiscipline from falling within the executive branch. In Egypt, the general rule is contained in Article168 of the Constitution is that judges are not removable [and the] law shall regulate the disciplinary

actions with regard to them. While the laws regulating the Supreme Constitutional Court and theState Council do not permit the Minister of Justice to interfere in the disciplining of their own judges,his control over the disciplinary process in the Ordinary Courts, the Administrative ProsecutionBody, and the State Cases Agency is indisputable. A similar situation exists in most Arab countries.

An alternative method is provided for in Egypts Supreme Constitutional Court and its StateCouncil. Article 177 of the Constitution provides that Members of the Supreme ConstitutionalCourt are irremovable [and the] Court shall call to account its members, in the manner prescribed bylaw. The entire disciplinary process for the Supreme Constitutional Court is handled by itsmembers through the Courts General Assembly, which is charged with evaluating the efficiency andability of its members. The Chief Justice of the Court starts this process by referring the membersuspected of misconduct, or of inability to perform their duties, to the Committee of Interim Affairs,which is composed of some of the Courts members. It is the Committees decision, after hearing the

accused judge, to decide whether the proceedings are to be continued or not. Once the committeedecides to proceed with disciplinary procedures, it delegates one to three of its members to make aformal inquiry. This inquiry, once completed, is referred to the Courts General Assembly, whichthen meets as a disciplinary tribunal with all members of the Court attending except those whoparticipated in the inquiry or indictment. After hearing and verifying the defense of the questionedmember, the General Assembly must decide whether this member is innocent of the allegedmisconduct; if the member is found guilty, he is forced to retire from the bench. The disciplinaryprocess in the State Council is handled within the Council in a similar manner.

In contrast to the disciplinary processes of the Supreme Constitutional Court and the StateCouncil, the disciplinary procedures established for ordinary court judges allow the Minister ofJustice to exert his authority over their judges. In accordance with Article 93 of the Judicial Power

28 Kersi B. Shroff, Judicial Tenure: The Removal and D iscipline of Judges in Selected Countries, Research Papers of theNational Commission on Judicial Discipline and Removal, Vol. II, the United States Government PrintingOffice, 1993, p. 1461.

29For instance, all members of judicial bodies in the Egyptian judicial system enjoy judicial immunity withinwhich they cannot be transferred to other positions, even as a promotion, without their consent.

This differs

slightly from the French system, wherein judicial immunity is confined to ordinary court judges andadministrative court judges affiliated with the State Council. See, Andrew West et al., The French L egal System: A n

Introduction, Fourmat Publishing, London, 1992, p. 110.


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Law, The Minister of Justice has the right to supervise all [ordinary] courts and judges... Inaddition, Article 94, paragraph 4, of this law provides that The Minister of Justice has the right towarn the chief judges and judges of primary courts after hearing their arguments... The filing of adisciplinary action against an ordinary court judge is done by the Attorney General upon a request bythe Minister of Justice. This request may be made at the initiative of the Minister of Justice himself orupon a suggestion by the Chief Judge of the court concerned. The Minister of Justice undertakes the

responsibility of enforcing removal decisions.

In conclusion, we find that Arab countries tend to consider that an independent judiciary, freefrom undue influence by the executive and legislative branches, is fundamental to a democratic formof government. However, there is credibility to the claim that these countries do not yet have ajudiciary that is entirely free from executive branch influence given the role played by the Minister ofJustice in the affairs of a large portion of the judiciary. Therefore, if these countries to have a trulyindependent judiciary, they need to consider their situation and internalize the experiences andexperiments of other democratic systems as well as similarly situated countries. A truly independent judiciary in the Arab countries will also require the entire judicial branch to be invested with moreindependence to solely handle their affairs.

E x ceptional Courts In most Arab countries, the problem is not simply that the judiciary lacksindependence but also that it is not allowed to have exclusive sway over judicial matters. Special andexceptional courts; security services that bypass the courts; and tampering with the jurisdiction of thecourts are a consistent problem in most Arab countries. In some ways, the problem has become lessobvious over the past couple decades, but it has definitely not disappeared.

It is true that some of the most severe violations of international judicial standards (such asrevolutionary tribunals that were clearly political in nature and observed few procedural guarantees)have lessened in recent years. But in other parts of the world, constitutional documents specificallyforbid the use of exceptional courts. In the Arab world, only Yemen has followed that path.(Palestinians have debated inclusion of such a clause in their constitution, and the Egyptianconstitution stipulates that each citizen has the right to resort to his natural judgethe precisemeaning of which is disputed.)

Further, the decline in exceptional courts has masked the development of another problem: thereliance on specialized courts that, while grounded far more firmly in law, still undermine the abilityof the judiciary to oversee the application of law. Specialized courtswhether they focus on securityissues, taxation, or electoral disputescan work best if they resemble the regular judiciary as much asis practicable and also a degree of oversight and participation from professional and trained judges.Even in such cases, the move against a unified judicial system has its costs for the rule of law.

REMED IES: ORGAN IZATION OF TH E JUD ICIARY

Arab states have made a clear commitment to the world, to each other, and to their own citizens

to build independent judiciaries. This is not a task or standard imposed by the outside but one whichthe Arab world, based on its own history and culture, has articulated for itself. Some important stepshave been taken to realize that goal, but further efforts are needed. It is time to move beyonddevelopment of standards to begin implementing them. Measures can be taken on three levels tothis end:

" On a regional level, there is considerable room for cooperation in developingstandards of best practice and monitoring progress. The European Union hasshown how this can be done. Such ambitious regional structures cannot be


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built instantaneously, but the Arab world must move from the stage ofdeclaration to the stage of institutionalization. Regional judiciaries, NGOs, andsupportive international actors can help develop ways of circulating bestpractice, developing appropriate training and continuing education, supportingresearch, and monitoring countrys compliance with the standards they have setfor themselves.

" On a state level, each Arab state must accept that judicial independence is notsomething that can be achieved only through static institutions; it also needscontinuous attention and development. If the pledges of constitutions andinternational instruments are to be taken seriously, legislative bodies in the Arabworld must be willing to deal with the judiciaries directly (and not merelythrough the executive) and as a co-equal branch of government. Judiciariesshould not legislate, but they must be consulted on all matters of legislativedrafting and budgeting that affect their work.

Executive authorities throughout the region must make a similar commitmentto treating the judiciary as a co-equal branch. Ministries of Justice will always

necessarily have some involvement with judicial affairs, but they must refrainfrom micromanaging all aspects of justice and allow a considerable measure ofresponsibility for judicial affairs and court administration to pass to the judiciary. To date, there are only isolated examples of this happening. In the1980s, Egypt took important steps toward increasing judicial independence,though much work still must be done. Yemen took some steps in the 1990 thatshowed willingness to accord the judiciary greater autonomy. In the past fewyears, Morocco evinced a real desire to pursue reform, though progress mayhave stalled. Recent legislation issued by the Palestinian Authority shows a verystrong commitment to judicial independence, but it is unclear whether any ofthis legislation can be implemented.

" Finally, judiciaries themselves must be empowered to develop their own

mechanisms to enhance professionalism and independence. Some of this workcan be done even absent a strong commitment by the executive toimplementing steps toward judicial independence. In other words, it may bemore practical to shift attention to developments over which the judiciary hassome control. Any increase in judicial independence might be incremental, butit will be important.

In particular, the judiciary needs not only autonomy from the executive but theability to organize its own affairs on a corporate basis. Judicial councils must bewilling to move beyond purely technical matters and articulate their needs to theexecutive. Judges clubs can be an important avenue for similar work.Judiciaries must become more outward looking, alert to developing regional and

international standards. Some of this work can be accomplished through moreactive conferences, publications, and region-wide judicial organizations.

The renewed global interest in judicial independence has spread to the Arab world: politicalleaders, judges, and ordinary citizens are showing greater interest in issues connected with the judiciary and the rule of law. Translating this interest into practice will require commitment at alllevels but will have tremendous benefit for societies in the region and for the reputation of Arabgovernance.


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Appendix A

BASIC PRIN CIPLES ON THE IND EPEN DEN CE OF THE JUDICIARY

Adopted by the Seventh United Nations Congress on the Prevention of Crime and the

Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by

General Assembly resolutions 40/ 32 of 29 November 1985 and 40/ 146 of 13 December 1985

Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia, theirdetermination to establish conditions under which justice can be maintained to achieve internationalco-operation in promoting and encouraging respect for human rights and fundamental freedomswithout any discrimination,

Whereas the Universal Declaration of Human Rights enshrines in particular the principles ofequality before the law, of the presumption of innocence and of the right to a fair and public hearingby a competent, independent and impartial tribunal established by law,

Whereas the International Covenants on Economic, Social and Cultural Rights and on Civil and

Political Rights both guarantee the exercise of those rights, and in addition, the Covenant on Civiland Political Rights further guarantees the right to be tried without undue delay,

Whereas frequently there still exists a gap between the vision underlying those principles and theactual situation,

Whereas the organization and administration of justice in every country should be inspired bythose principles, and efforts should be undertaken to translate them fully into reality,

Whereas rules concerning the exercise of judicial office should aim at enabling judges to act inaccordance with those principles,

Whereas judges are charged with the ultimate decision over life, freedoms, rights, duties andproperty of citizens,

Whereas the Sixth United Nations Congress on the Prevention of Crime and the Treatment ofOffenders, by its resolution 16, called upon the Committee on Crime Prevention and Control toinclude among its priorities the elaboration of guidelines relating to the independence of judges andthe selection, professional training and status of judges and prosecutors,

Whereas it is, therefore, appropriate that consideration be first given to the role of judges inrelation to the system of justice and to the importance of their selection, training and conduct,

The following basic principles, formulated to assist Member States in their task of securing andpromoting the independence of the judiciary should be taken into account and respected by

Governments within the framework of their national legislation and practice and be brought to theattention of judges, lawyers, members of the executive and the legislature and the public in general.The principles have been formulated principally with professional judges in mind, but they applyequally, as appropriate, to lay judges, where they exist.


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INDEPENDENCE OF THE JUDICIARY

1. The independence of the judiciary shall be guaranteed by the State and enshrined in theConstitution or the law of the country. It is the duty of all governmental and other institutions torespect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and inaccordance with the law, without any restrictions, improper influences, inducements, pressures,threats or interferences, direct or indirect, from any quarter or for any reason.

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusiveauthority to decide whether an issue submitted for its decision is within its competence asdefined by law.

4. There shall not be any inappropriate or unwarranted interference with the judicial process, norshall judicial decisions by the courts be subject to revision. This principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposedby the judiciary, in accordance with the law.

5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legalprocedures. Tribunals that do not use the duly established procedures of the legal process shallnot be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.

6. The principle of the independence of the judiciary entitles and requires the judiciary to ensurethat judicial proceedings are conducted fairly and that the rights of the parties are respected.

7. It is the duty of each Member State to provide adequate resources to enable the judiciary toproperly perform its functions.

FREED OM OF EXPRESSION AN D ASSOCIATION

8. In accordance with the Universal Declaration of Human Rights, members of the judiciary arelike other citizens entitled to freedom of expression, belief, association and assembly; provided,however, that in exercising such rights, judges shall always conduct themselves in such a manneras to preserve the dignity of their office and the impartiality and independence of the judiciary.

9. Judges shall be free to form and join associations of judges or other organizations to representtheir interests, to promote their professional training and to protect their judicial independence.

QUALIFICATION S, SELECTION AND TRAIN IN G

10. Persons selected for judicial office shall be individuals of integrity and ability with appropriatetraining or qualifications in law. Any method of judicial selection shall safeguard against judicialappointments for improper motives. In the selection of judges, there shall be no discrimination

against a person on the grounds of race, color, sex, religion, political or other opinion, nationalor social origin, property, birth or status, except that a requirement, that a candidate for judicialoffice must be a national of the country concerned, shall not be considered discriminatory.

CONDITION S OF SERVICE AN D TEN URE

11. The term of office of judges, their independence, security, adequate remuneration, conditions ofservice, pensions and the age of retirement shall be adequately secured by law.


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12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirementage or the expiry of their term of office, where such exists.

13. Promotion of judges, wherever such a system exists, should be based on objective factors, inparticular ability, integrity and experience.

14. The assignment of cases to judges within the court to which they belong is an internal matter ofjudicial administration.

PROFESSION AL SECRECY AND IMMUN ITY

15. The judiciary shall be bound by professional secrecy with regard to their deliberations and toconfidential information acquired in the course of their duties other than in public proceedings,and shall not be compelled to testify on such matters.

16. Without prejudice to any disciplinary procedure or to any right of appeal or to compensationfrom the State, in accordance with national law, judges should enjoy personal immunity fromcivil suits for monetary damages for improper acts or omissions in the exercise of their judicialfunctions.

DISCIPLIN E, SUSPEN SION AND REMOVAL

17. A charge or complaint made against a judge in his/ her judicial and professional capacity shall beprocessed expeditiously and fairly under an appropriate procedure. The judge shall have the rightto a fair hearing. The examination of the matter at its initial stage shall be kept confidential,unless otherwise requested by the judge.

18. Judges shall be subject to suspension or removal only for reasons of incapacity or behavior thatrenders them unfit to discharge their duties.

19. All disciplinary, suspension or removal proceedings shall be determined in accordance withestablished standards of judicial conduct.

20. Decisions in disciplinary, suspension or removal proceedings should be subject to anindependent review. This principle may not apply to the decisions of the highest court and thoseof the legislature in impeachment or similar proceedings.


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APPENDIX B

TH E BE IRUT DE CLARATION

RECOMMENDATIONS OF THE FIRST ARAB CONFERENCE ON JUSTICE

Beirut, 14-16 June 1999

Convened by the Arab Center for the Independence of the Judiciary and the Legal Profession(ACIJLP), in collaboration with the Geneva-based Center for the Independence of Judges andLawyers (CIJL), hosted by the Bar Association in Beirut, and under the auspices of the LebaneseMinister of Justice, 110 Arab jurists from 13 Arab states participated in a conference on TheJudiciary in the Arab Region and the Challenges of the 21st Century. The conference, held on 14-16June 1999, focused on four main topics:

1. The main challenges faced by judiciary institutions in the Arab region in the 21st century.

2. The main impediments and problems related to the independence of the judiciary in theArab region.

3. The judiciary in the Arab region and international standards on human rights and theindependence of the judiciary.

4. The basic safeguards for the independence of the judiciary in the Arab region.

The participants discussed the ability of the judiciary in the region to confront the various challengesresulting from international political and economic transformations and the new technologicalchallenges. The ability to confront such challenges depends on the existence of real support for theindependence of the judiciary in the Arab region.

Moreover, the judiciarys capacity to be a substantial power in Arab countries and to be an activeparty in entrenching democratic principles and the rule of law is pending on the progress ofdemocratic development and respect for the law, including the subjection of the main powers to it.The discussions stressed that democracy is progressing with difficulty, which in turn affects thedevelopment of the judiciary in many Arab countries.

In the conference, participants discussed several papers and other issues in detail. They stressed theimportance of articulating and implementing a set of recommendations which would be put intoeffect by individuals, jurist institutions and Arab governments. This action would serve as realsupport for the judiciary in enabling it to confront the challenges of the coming century, and wouldalso contribute towards entrenching the rule of law and democracy in the Arab region.

The participants proposed the following recommendations:

First: Safeguards for the Judiciary

1. To include the UN Basic Principles on the Independence of the Judiciary into Arabconstitutions and laws, and in particular, to penalize any interference in the work of thejudiciary.


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2. The state shall guarantee an independent budget for the judiciary, including all its branchesand institutions. This budget shall be included as one item into the state budget, and shall bedetermined upon the advice of the higher judicial councils within the judicial bodies.

3. The executive power shall not intervene in the activities of judicial inspection in any form,nor shall it breach the independence of the judiciary through orders or circulars.

4. The public prosecution shall be considered a branch of the judiciary. The authorityundertaking this prosecution shall be separate from those of investigation and referral.

5. Judges shall have immunity associated with their jobs. Except in cases of illegal acts nojudicial measures shall be taken unless upon a permission issued by the highest council.

6. Lawsuits shall not be transferred from the judges reviewing them unless for reasons relatedto incompetence.

7. It is important to reform the administrative structure and other work mechanisms pertainingto the work of judges, and to facilitate the means for an efficient administration of justice.

8. To link the work of the judiciary with a democratic environment on the basis that democracyis the approach for a more effective management of justice.

9. Lawsuits shall be distributed among judges of various courts through their generalassemblies or according to their internal regulations in case such assemblies do not exist.Such distribution shall be made in a manner that guarantees the non-intervention of theexecutive.

10. Judges shall freely practice freedom of assembly in order to represent their differentinterests. In this regard, they shall have the right to establish an organization to protect theirinterests and guarantee their constant promotion.

Second: Electing and Appointing Judges

11. The election of judges shall be free of discrimination on basis of race, color, sex, faith,language, national origin, social status, birth, property, political belonging, or any otherconsideration. Particularly when electing judges, the principle of equal opportunity must befollowed to guarantee that all applicants for a judicial position are objectively assessed.

12. Assuming the position of judge shall be possible, without discrimination, for all those whomeet its requirements. The appointment of judges shall be made through the higher councilsof the concerned judicial bodies.

13. No judges shall be appointed by virtue of temporary contracts. They cannot be disciplined

unless by boards made from their bodies, provided that the decisions made by such boardsshall not have immunity against being challenged, unless the decision is made by the highestcouncil of the concerned judicial body.

14. The law shall stipulate the rules for appointing, delegating, transferring, promoting, anddisciplining judges, as well as for all other matters related to their affairs, particularly thoseconcerning their livelihood while in office and in retirement. The aim of this is to guaranteein all cases their independence from the executive.


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15. A percentage of no less than 25 per cent of vacant judicial posts shall be allocated to lawyersand those working in legal issues, provided that the appointment is made by the highestjudicial boards in the concerned judicial bodies.

Third: Qualification and Training of Judges

16. The state shall endeavor, through specialized centers and institutes, to provide judges withan effective legal training in order to prepare them adequately to assume judicial posts. Allaspects of the study and training programs shall be subject to the supervision of thejudiciary.

In the professional preparation of judges, the following principles shall be observed:

a. To activate the Arab convention issued in Amman pertaining to the cooperation in theprofessional qualification of judges, and to reinforce the role of non-governmentalorganizations to secure their support for qualification programs and to serve as intellectualentities for judges, particularly in the field of human rights.

b. These qualification programs shall focus on legal and professional training, as well aspersonal growth. The qualification programs shall particularly focus on managing andfacilitating the role of the defense.

17. To develop national institutions specializing in qualifying judges, whether by developingcourses or financial and information resources supported by modern technological systems,in such a way that would guarantee the modernization of the judiciary, change educationalcourses in the faculties of law and develop infrastructure for the legal profession.

18. To support continuous judicial education in developing an in-depth understanding ofconstitutional provisions in a way that would guarantee constitutional legitimacy, thestructure of which is connected with the intelligent understanding of human rights.

19. To urge the judicial authorities to constantly refer to international human rights treatiesratified by states, as being part of the states legal structure and a framework of the valueswhich societies should adopt and try to implement.

20. To make the exchange of legal expertise between judges and lawyers, supporting humanrights and freedoms, a firm methodology of Arab states, and a planned attitude of their legalsystems in order to guarantee the objectiveness of their application and their consistencewith modern concepts of advanced countries.

21. To develop educational law courses in Arab countries that will give special consideration tohuman rights and freedoms and constitutional legitimacy, and affirm solidarity with effortsmade by the United Nations in this regard.

Fourth: Judicial Review on Constitutionality of Laws

21. States with no system for judicial review on the constitutionality of laws shall adopt such asystem whether through establishing a supreme constitutional court for this purpose, orestablishing constitutional councils to assume this task, provided that they are made ofmembers of judicial bodies, lawyers, and law professors, and in a way that would guaranteethe independence of such a court or council and secure the soundness of practicing its


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constitutional responsibility. All members of such a court or council shall be appointedwithout the intervention of the executive. The right of individuals to bring a constitutionallawsuit by means of original claim shall be guaranteed.

Fifth: Safeguards for the Rights of the Defense and a Fair Trial

22. To call on Arab states to ratify the optional protocol to the International Covenant on Civiland Political Rights (ICCPR), which enables individuals to bring their case before theHuman Rights Committee after having exhausted national means of challenging throughnational judiciary without being able to obtain their rights.

23. Every defendant shall be guaranteed an attorney of his/ her choice. In case the defendant isunable to afford lawyers fees, the judicial authority shall appoint a lawyer to the defendant.

24. Laws applied in Arab states shall set short periods for suspension whether in the stage ofgathering information or during interrogations. During these two stages, the minimumhuman rights and freedoms must be observed including the right to a defense, as well as theconstraints necessary to protect human rights and freedoms and secure everyones right to

refrain from making statements that would condemn him.

25. No suspension shall be made against misdemeanors of which the sentence is no more thanone year in prison. Also, those in preventive detention shall not be denied their right toobtain, from the state, a suitable compensation for his imprisonment in case there is legalground.

26. Decisions on judicial litigation must be made according to previously set legal rules whichrespect human rights and freedoms, provided that parties have equal chances to a defense,whether with respect to the actual dispute or its legal factors.

27. Judicial disputes shall only be decided on by judges who are the most objective given thenature of the case and the circumstances surrounding it.

28. Only natural judges shall decide on disputes of a judicial nature.

29. There must be a guarantee that any trial, be it civil or criminal, is heard within a reasonabletime that would secure a fair trial. Trials shall be conducted with modern technical means asmuch as can be provided.

30. Refraining from implementing judicial rulings by law enforcement officials is a crime thepenalty of which shall be stiffened. Impeding the implementation of rulings shall beconsidered as refraining from the implementation.

Sixth: Women and the Position of Judge

31. No discrimination is permitted between men and women with respect to assuming the judicial responsibility. Women shall not be subject to any discrimination for assuming thisposition.

32. The rights achieved by Arab women in the field of the judiciary shall be supported andextended. Existing laws shall be cleared from impediments which prevent or restrict thepractice of these rights.


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33. Links shall be made between the issue of womens rights in the society and cultural andsocial development in concerned Arab countries. Studies which stress womens rights inconscious work and in society shall be conducted.

34. To exchange experiences among Arab countries to support equal rights for men and womenwhile practicing judicial work.

Seventh: The International Criminal Court

35. To assert the role of the International Criminal Court and call upon Arab states to sign itsStatute to support the Court and guarantee the effective practicing of its jurisdiction.

36. To call upon Arab states to increase participation in preparatory meetings assigned to set theprocedural rules of the Court in order to form a general trend with respect to the Courtssafeguards, and particularly its independence from the Security Council.

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